Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Ratified ILO Conventions

Industrial legislation should not only state its intention to implement international obligations, it should actually do so. Throughout this submission we draw attention to parts of the FW Act that do not meet those obligations where relevant. However, a more fulsome account than the time allowed for this submission has permitted is contained in comments to the ILO as part of its regular survey and reporting cycle, as well as our support for particular complaints. We assume these materials are available to the PC however we can provide copies should this assumption be mistaken.

Australia has ratified 58 of the Conventions of the ILO (41 of which remain in force). This includes seven of the eight fundamental conventions: the Forced Labour Convention 1930 (29), the Freedom of Association and Protection of the Right to Organise Convention 1948(87), the Right to organise and collective bargain convention 1949(87), the Equal Remuneration Convention 1951(100), Abolition of Forced Labour Convention 1957(105), Discrimination (Employment and Occupation) Convention 1957(111) and the Worst Forms of Child Labour Convention 1999(182). The Australia has not ratified the Minimum Age Convention 1973 (138)

Practical effects of ratification – the Maritime Labour Convention 2000

International Labour Standards can, if properly enforced be a useful method of lifting the minimum standards of employment for workers both domestically and abroad. By way of example, the Maritime Labour Convention of 2000 (the MLC) provides a near globally recognisable set of minimum employment conditions for seafarers- many of whom face employment conditions that can only be described as primitive and were the subject of public scrutiny in the groundbreaking 1992 Australian Parliamentary Inquiry: “Ships of Shame: inquiry into Ship Safety.” That Inquiry found:

International pressure must be applied to flag states that do not carry out their international responsibilities. If they ratify conventions then they must perform the duties of those conventions.    More frequent, consistent and more stringent port state inspections will raise the expectation of substandard ship operators that their vessels will be detected and detained.

Today, the enforcement of the MLC is undertaken by a combination of ship inspectors conducted by staff and affiliates of the International Transport Federation as well as a compliance role that is undertaken by the Australian Maritime Safety Authority.  So while there are still poor standards in many areas of the shipping industry, the creation and enforcement of minimum standards in this critical area of the global economy is welcomed and should be expanded further into more areas of international trade and commerce.

Unratified ILO Conventions

The impact of the increasing divergence of Australian statutory labour law from international legal norms is compounded by the fact that there are a series of conventions which Australia has not ratified and should ratify in order to give proper recognition to the objects of industrial relations laws as discussed in our introductory chapter.

Australia has not ratified the Collective Bargaining Convention 1981(154) or the Collective Bargaining Recommendation 1981. The Collective Bargaining Convention requires the member states to take measures to promote collective bargaining (see Item 5). The recommendation requires that “measures adapted to national conditions should be taken, if necessary, so that collective bargaining is possible in any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry, or regional or national levels.

The regulatory framework of enterprise bargaining in the FW Act and the prohibition on pattern bargaining fix the locus of bargaining at the enterprise level. This is not consistent with international norms.

Australia has also not ratified any conventions that specifically deal with public sector workers. The Labour Relations (Public Service) Convention 1971 for example recognises the unique difficulties experienced by public sector workers in collective bargaining with sovereign governments. This convention precedes on the basis that public sector workers require a multiplicity of methods to deal with disputes over terms and conditions. Article 5 of the Convention states:

“The settlement of disputes in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between parties through independent and impartial machinery, such as mediation, conciliation and arbitration established in such a manner as to ensure confidence of the parties involved”

We have provided commentary to the ILO concerning Australia’s compliance with unratified conventions as part of its regular survey and reporting cycle. Again, we assume these materials are available to the PC however we can provide copies should this assumption be mistaken.

Collective Bargaining in other systems

There are many international examples of collective bargaining frameworks that operate at a level beyond a single business or a single workplace. For example¹⁶:

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  In Germany, bargaining usually takes place at an Industry level and generally there are different agreement reached for different regions. There are different structures for reaching consensus on arrangements with individual business, being matters not dealt with in the regional industry agreement. As at 2011, in the regions formally comprising West Germany, 61% of employees are covered by collective agreements of which 54% are industry level agreements. In the former East Germany, these figures are 49% and 37% respectively¹⁷. The Federal Labour Court in Germany has recognised that strikes for the purposes of concluding collective agreements are constitutionally protected¹⁸.
  

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  In Denmark, approximately 80% of workers are covered by collective bargaining¹⁹. There are three layers of agreements – national framework agreements, industry level agreements (dealing with some pay and conditions while also setting a framework for single company negotiations) as well at the single employer level. The right to strike is supported by the Danish labour Court and domestic legislation, and includes taking sympathy action²⁰, although the right may be restricted by a collective agreement.
  

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  In Belgium, national negotiations set the minimum wage as addressing broad matters such as training, employment programs and childcare. Industry and company level negotiations also occur, however each industry agreement requires workers to be better off than the national agreement, and each company level agreement similarly requires improvements over the industry agreement.²¹ Negotiations at all levels are supported by a right to strike via a monositic legal system that generally gives precedence to international obligations over domestic law²².
  

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  In the Netherlands, the National Minimum Wage is set outside of the collective bargaining process. Most agreements are negotiated at the industry level and some are framework agreements which set the parameters of company level bargaining. Industry level agreements that cover a majority of an industry can be administratively proclaimed to cover the whole of that industry.²³ As with Belgium, the monositic legal system has seen the right to strike domestically drawn from international obligations, and in particular Article 6(4) of the European Social Charter which supports strikes taken in support of collective negotiations.²⁴
  

The above is not raised to suggest that Australia should shift in all respects to a model of industrial relations based on one of these examples. It merely serves to demonstrate that other advanced economies have managed to accommodate some framework and practice that extends beyond “enterprise” collective bargaining supported by collective action rights – in some cases to directly comply with their international obligations.